BAIL APPLN. 873/2024 Page 1 of 22

$~P-1

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 07.02.2026

Pronounced on: 11.02.2026

Uploaded on: 11.02.2026

+ BAIL APPLN. 873/2024

GULHASAN GULSHER KHAN .....Petitioner

Through: Mr. Vivek Kumar Singh, Mr. Vishal

Arun Mishra, Mr. Shubham Gupta,

Mr. Avinash Kumar Singh and Ms.

Rupali Panwar, Advocates.

versus

DIRECTORATE OF REVENUE INTELLIGENCE .....Respondent

Through: Mr. Satish Aggarwala, Sr. Standing

Counsel with Mr. Gagan Vaswani,

Advocates.

CORAM:

HON’BLE MR. JUSTICE PRATEEK JALAN

J U D G M E N T

1. The petitioner seeks regular bail in connection with

FNO.DZU/34/ENQ-02/2022 dated 07.03.2022 and 08.03.2022, for the

offences punishable under Sections 21(c), 23, and 29 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 [“NDPS Act”].

A. PROSECUTION CASE

2. The case of the prosecution is as follows:

a. The petitioner herein is the proprietor of M/s. Seven Seas Global

Shipping Company [“Seven Seas”], which was named as the

BAIL APPLN. 873/2024 Page 2 of 22

consignee of a consignment of goods imported under Bill of Entry No.

7748800 dated 05.03.2022 [“the consignment”].

b. Upon an information from the National Customs Targeting Centre, the

officers of the Directorate of Revenue Intelligence [“DRI”] examined

the consignment on 07.03.2022, at ICD, Tughlakabad. The

examination was carried out in the presence of the petitioner herein

and the representative of the Customs Broker, M/s. Cargo Navigation

Services Private Limited. A panchnama was prepared on

07/08.03.2022.

c. The description of the goods was „APPLE SUN TOP JUICE‟ [904

cartons] and „POMEGRANATE SUN TOP JUICE ‟ [944 cartons].

Each carton contained 12 bottles of 1 litre each.

d. On visual inspection, it was found that 2 cartons of apple juice [24

bottles] contained whitish sediments at the bottom, mixed with the

juice.

e. Upon testing with the aid of a drug field testing kit, the contents of the

said bottles were found positive for heroin.

f. The contents of some of the other cartons were also tested on a

random basis, but the test results were inconclusive.

g. Representative samples were thereafter drawn from the juice bottles,

in triplicate, and the 24 bottles in question were, on preliminary

examination, found to contain heroin.

h. The consignment was thereafter seized under a Seizure Memo dated

08.03.2022.

BAIL APPLN. 873/2024 Page 3 of 22

i. The petitioner‟s statement was recorded under Section 67 of the

NDPS Act on 08/09.03.2022. He stated that:

(i) The petitioner met one Arshad Seikh in Dubai in 2012, who

introduced him to Asif Nawaz, CEO of Hafiz Muhamad Asif Trading

LLC. The latter wanted to export apple and pomegranate juice to

India, which was manufactured in Afghanistan and exported by

Waqas Yama Ltd., Jalalabad, Afghanistan. The petitioner already had

the requisite regulatory clearances for the import of apple and

pomegranate juice. He, therefore, agreed to facilitate such import into

India by using the importer-exporter code [“IEC”] of Seven Seas.

(ii) The consignment was shipped by one Asif Nawaz from Dubai

under Invoice No. 1247 dated 13.10.2021. The invoice was raised in

the name of Waqas Yama Ltd, and Seven Seas was named as the

consignee therein.

(iii) Copies of the original invoice, Country of Origin Certificate,

and Bill of Lading were provided to the petitioner by Asif Nawaz, and

he engaged a customs broker, M/s Cargo Navigation Services Private

Limited, for clearance of the consignment.

(iv) The petitioner received a sum of Rs. 1,11,100/- in his bank

account from one Syed Saif on 03.03.2022, on the directions of Asif

Nawaz, out of which he transferred a sum of Rs. 50,000/- to the

broker‟s representative, Shiva Global Shipping. The petitioner was to

be paid Rs. 40,000/- by Asif Nawaz for his services.

(v) He was instructed by Asif Nawaz to call one „Amit‟, Plot No.

31, Hajipur Road, Adarsh Nagar, City Dasuya, Punjab, at a mobile

BAIL APPLN. 873/2024 Page 4 of 22

number provided by him, who would collect the consignment and

hand over the remaining payment to the petitioner. The petitioner

stated that he had never spoken to the manufacturer or supplier of the

consignment in Afghanistan.

j. The Director of M/s. Cargo Navigation Services Private Limited also

made a statement under Section 67 of the NDPS Act, wherein he

stated that he had received a request of clearance of the consignment

from Shiva Global Shipping, which forwarded the necessary

documents, including a copy of the IEC of Seven Seas and the Bill of

Lading.

k. The proprietor of Shiva Global Shipping also gave a statement under

Section 67 of the NDPS Act, in which he stated that he was engaged

by the petitioner to clear the consignment, and received the documents

from the petitioner, for which he received an advance payment of Rs.

50,000/- from the petitioner.

l. The labels on the carton were in the name of M/s S and S International

[“S&S”], A-118, 4

th

Floor, Abul Fazal Enclave, Part-II, Jamia Nagar,

New Delhi – 110025. A partner of S&S made a voluntary statement

under Section 67 of the NDPS Act on 06.04.2027, in which it was

stated that, he was originally approached for importing a consignment

of „SUN-TOP brand juice of Afghanistan origin‟, but he cancelled the

deal on the advice of his customs house agent.

m. The mobile number of „Amit‟, provided by Asif Nawaz to the

petitioner, was traced to one Jaspal Singh, who stated that he had

facilitated the mobile connection for Kulvinder @ Kinda, a resident of

BAIL APPLN. 873/2024 Page 5 of 22

village Mehatpur, Jainpur. Jaspal Singh identified Kulvinder @ Kinda

from a photograph.

3. On this basis, it is contended that the petitioner had imported the

consignment, which included heroin, in the name of his proprietorship firm.

He was, therefore, arrested on 09.03.2022 and remanded to judicial custody.

B. SUBMISSIONS BY LEARNED COUNSEL FOR THE PARTIES

4. I have heard Mr. Vivek Singh, learned counsel for the petitioner, and

Mr. Satish Aggarwala, learned Senior Standing Counsel for the respondent –

DRI.

5. In support of the present application, Mr. Singh submitted as follows:

a. The prosecution has failed to establish conscious possession of the

consignment by the petitioner. In fact, the consignment was

intercepted before it came into the possession of petitioner at all.

b. The importer of the consignment, as evident from the labels on the

cartons, was intended to be S&S, and not the petitioner.

c. Although the petitioner got involved in the transaction in January

2022, believing it in good faith to be a consignment of juice, there is

no material whatsoever to suggest that the petitioner was aware of any

other contents of the consignment.

d. The material on record also shows that the petitioner was facilitating

the import of the consignment for a relatively small fee, and that it

was to be handed over by him to the ultimate importer, who was

Kulvinder @ Kinda. Further, he was not in contact with the exporter.

e. No contraband or incriminating documents have been recovered from

the petitioner or at his instance.

BAIL APPLN. 873/2024 Page 6 of 22

f. The petitioner is also entitled to the benefit of bail on the ground that

he has been in judicial custody for approximately 46 months, i.e. since

09.03.2022.

g. The trial is still at a nascent stage. Although the chargesheet was filed

on 31.08.2022 and charges were framed on 14.02.2023 against the

petitioner, co-accused Kulvinder @ Kinda has recently been arrested,

and a supplementary chargesheet has been filed on 14.07.2025. One

witness [PW-1] was partly examined in the year 2023, but his cross

examination was inconclusive, as recorded in the order dated

24.04.2023, and he has not been examined again. Another witness

[PW-5] was examined and discharged on 07.05.2025. There are a total

of 40 witnesses to be examined, and the trial will require substantial

time.

h. The petitioner is a citizen of India, aged in his 60s, and has significant

family and business ties to the country.

i. The petitioner has clean antecedents and is not involved in any other

criminal case.

6. Mr. Aggarwala, on the other hand, opposed the grant of bail to the

petitioner, on the following grounds:

a. The present case involves 26.115 kilograms of heroin, which is an

extremely large quantity of contraband, compared even to the

commercial quantity of 250 grams. Mr. Aggarwala stated that the

aforesaid weight is inclusive of the juice and the bottle in which the

BAIL APPLN. 873/2024 Page 7 of 22

sediment was present, in terms of the judgment of the Supreme Court

in Hira Singh and Anr v. Union of India and Anr

1

.

b. Although the consignment was initially in the name of S&S, the

petitioner later provided his IEC for its receipt, and the invoice was

also issued by the exporter naming the petitioner‟s firm as the

consignee. This is sufficient to establish conscious possession on his

part.

c. The prosecution relies upon WhatsApp conversations between the

petitioner and Asif Nawaz, which refer inter alia to payments to be

made by “hawala or western union”.

d. The petitioner‟s case that the actual consignee was not the petitioner,

but Kulvinder @ Kinda, is based solely on a WhatsApp message by

which Asif Nawaz forwarded the address of „Amit‟ to him.

e. On the point of prolonged incarceration, Mr. Aggarwala submitted

that the length of custody alone is insufficient to release the accused

on bail, and the Court must have due regard to the requirement of

Section 37(1)(b) of the NDPS Act, which lays down the conditions for

the grant of bail to persons accused of offences involving commercial

quantity of drugs. He argued that those parameters, which are a

condition precedent to the grant of bail, are not made out in the

present case.

7. In rejoinder, Mr. Singh submitted that:

1

(2020) 20 SCC 272 [hereinafter, “Hira Singh”].

BAIL APPLN. 873/2024 Page 8 of 22

a. The WhatsApp chats are unverified, and cannot be relied upon by the

prosecution at this stage. In any event, they do not establish the

petitioner‟s knowledge of the contents of the consignment.

b. Even the reference to payment by hawala was in the context of

delayed payment and clearance of the goods, which the petitioner

bona fide believed, at all times, to be a consignment of juice.

c. The contents of the chats, and their effect, are to be tested at the time

of the trial.

8. Learned counsel cited several judgments and orders of the Supreme

Court and this Court in support of their submissions, which shall be

considered later in this judgment.

C. ANALYSIS

I. SATISFACTION OF SECTION 37 OF THE NDPS ACT

9. The allegations against the petitioner pertain to a commercial quantity

of heroin, for which he has been accused of offences under Sections 21(c)

and 23(c) read with Section 29 of the NDPS Act. As far as offences

involving commercial quantities of contraband are concerned, Section

37(1)(b) places the following restrictions upon the grant of bail to an

accused. Section 37 is reproduced below:

“37. Offences to be cognizable and non-bailable.—

(1) Notwithstanding anything contained in the Code of Criminal

Procedure, 1973 (2 of 1974)—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under

section 19 or section 24 or section 27A and also for offences involving

commercial quantity shall be released on bail or on his own bond

unless—

(i) the Public Prosecutor has been given an opportunity to oppose the

application for such release, and

BAIL APPLN. 873/2024 Page 9 of 22

(ii) where the Public Prosecutor opposes the application, the court is

satisfied that there are reasonable grounds for believing that he is

not guilty of such offence and that he is not likely to commit any

offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-

section (1) are in addition to the limitations under the Code of Criminal

Procedure, 1973 (2 of 1974) or any other law for the time being in force,

on granting of bail.”

2

10. In Mohd. Muslim v. State (NCT of Delhi)

3

, the Supreme Court has

analysed the aforesaid provision, particularly in the context of a claim for

bail based upon prolonged incarceration. The Supreme Court has explained

the test for satisfaction of Section 37(1)(b)(ii), in the following terms:

“19. The conditions which courts have to be cognizant of are that there are

reasonable grounds for believing that the accused is “not guilty of such

offence” and that he is not likely to commit any offence while on bail.

What is meant by “not guilty” when all the evidence is not before the

court? It can only be a prima facie determination. That places the court's

discretion within a very narrow margin. Given the mandate of the general

law on bails (Sections 436, 437 and 439 CrPC) which classify offences

based on their gravity, and instruct that certain serious crimes have to be

dealt with differently while considering bail applications, the additional

condition that the court should be satisfied that the accused (who is in

law presumed to be innocent) is not guilty, has to be interpreted

reasonably. Further the classification of offences under the Special Acts

(the NDPS Act, etc.), which apply over and above the ordinary bail

conditions required to be assessed by courts, require that the court records

its satisfaction that the accused might not be guilty of the offence and that

upon release, they are not likely to commit any offence. These two

conditions have the effect of overshadowing other conditions.

20. In cases where bail is sought, the court assesses the material on record

such as the nature of the offence, likelihood of the accused cooperating

with the investigation, not fleeing from justice: even in serious offences

like murder, kidnapping, rape, etc. On the other hand, the court in these

cases under such Special Acts, has to address itself principally on two

facts: likely guilt of the accused and the likelihood of them not committing

any offence upon release. This Court has generally upheld such conditions

2

Emphasis supplied.

3

2023 SCC OnLine SC 352 [hereinafter, “Md. Muslim”].

BAIL APPLN. 873/2024 Page 10 of 22

on the ground that liberty of such citizens has to—in cases when accused

of offences enacted under special laws—be balanced against the public

interest.

21. A plain and literal interpretation of the conditions under Section 37

(i.e. that court should be satisfied that the accused is not guilty and would

not commit any offence) would effectively exclude grant of bail altogether,

resulting in punitive detention and unsanctioned preventive detention as

well. Therefore, the only manner in which such special conditions as

enacted under Section 37 can be considered within constitutional

parameters is where the court is reasonably satisfied on a prima facie

look at the material on record (whenever the bail application is made)

that the accused is not guilty. Any other interpretation would result in

complete denial of the bail to a person accused of offences such as those

enacted under Section 37 of the NDPS Act.

22. The standard to be considered therefore, is one, where the court

would look at the material in a broad manner, and reasonably see

whether the accused's guilt may be proved. The judgments of this Court

have, therefore, emphasised that the satisfaction which courts are

expected to record i.e. that the accused may not be guilty, is only prima

facie, based on a reasonable reading, which does not call for meticulous

examination of the materials collected during investigation (as held in

Union of India v. Rattan Mallik, (2009) 2 SCC 624). Grant of bail on

ground of undue delay in trial, cannot be said to be fettered by Section

37 of the Act, given the imperative of Section 436-A which is applicable to

offences under the NDPS Act too (ref. Satender Kumar Antil v. CBI, (2022)

10 SCC 51). Having regard to these factors the Court is of the opinion that

in the facts of this case, the appellant deserves to be enlarged on bail.”

4

11. Applying these standards, the question that the Court must ask itself,

in order to satisfy the requirements of Section 37(1)(b)(ii), is whether on a

prima facie and reasonable reading, the accused may not be guilty. The

matter does not require a mini trial or meticulous examination of all the

material, but a prima facie and reasonable assessment.

12. On the anvil of this test, I am of the view that the petitioner satisfies

the condition imposed under Section 37(1)(b)(ii), for the following reasons:

4

Emphasis supplied.

BAIL APPLN. 873/2024 Page 11 of 22

a. As far as the requirement of conscious possession is concerned,

although the petitioner‟s IEC was admittedly used for the transaction,

there is prima facie no material to establish his knowledge of the

nature of the consignment. The consignment was originally intended

for S&S, and even when intercepted, the cartons bore labels addressed

to S&S. The petitioner‟s involvement has, therefore, come in at a later

stage. Further, the consignment was intercepted before it had ever

come into the possession of the petitioner. I am supported in this

analysis by the decision of a coordinate Bench of this Court in Vipin

Mittal v. National Investigating Agency

5

, which in turn relied upon

the decisions of the Supreme Court in Union of India v. Mohd. Nawaz

Khan

6

, and Md. Muslim.

b. Mr. Singh relied upon the judgment of the Supreme Court in Bharat

Chaudhary v. Union of India

7

, and of this Court in Mohd. Nasar v.

Narcotics Control Bureau

8

, to submit that WhatsApp chats,

unsupported by forensic analysis, cannot be used at this stage to

implicate the petitioner. Even otherwise, taking the WhatsApp chats

relied upon by the prosecution at their face value, they prima facie

establish that the petitioner was facilitating the import not on his own

account, but for a third-party consignee, named in the WhatsApp chats

5

2023 SCC OnLine Del 3270, paragraph 14.

6

(2021) 10 SCC 100.

7

(2021) 20 SCC 50, paragraphs 12 and 13.

8

2024 SCC OnLine Del 771, paragraph 31 [hereinafter, “Md. Nasar”].

BAIL APPLN. 873/2024 Page 12 of 22

as „Amit‟. Amit‟s phone number, even according to the prosecution,

was ultimately traced to Kulvinder @ Kinda.

c. The reference to hawala payment does not persuade me to reach a

contrary conclusion, as it is prima facie, equally consistent with the

petitioner‟s case that he was facilitating an import of a consignment of

juice and was anxious about the belated payment.

d. Mr. Singh joined issue on the measurement of contraband, as relied

upon by the DRI. He submitted that the weight of the juice and/or

bottles cannot be regarded as “integral” to delivery or consumption of

the contraband, so as to fall within Hira Singh, as interpreted in Md.

Nasar. I do not consider it necessary to return a finding on this aspect

at this stage, as I have proceeded on the basis that the petitioner fulfils

the criteria laid down in Section 37(1)(b) of the NDPS Act, even

assuming the quantity involved to be a commercial quantity.

13. The petitioner also has no prior criminal involvements and Mr.

Aggarwala candidly submitted that he had clear antecedents.

14. For the aforesaid reasons, on the standard laid down in Md. Muslim,

the petitioner satisfies the conditions imposed by Section 37(1)(b) of the

NDPS Act.

II. PROLONGED INCARCERATION AND DELAY IN TRIAL

15. The second ground of consideration in the present case is the

petitioner‟s entitlement to bail on the ground of prolonged incarceration. Mr.

Singh submitted that the petitioner has been in custody for approximately 46

months. The Nominal Roll on record also certifies his jail conduct as

satisfactory.

BAIL APPLN. 873/2024 Page 13 of 22

16. Mr. Singh relied upon several judgments and orders of the Supreme

Court, in which the Court has released persons accused under the NDPS Act

on bail, despite the applicability of Section 37. Reference in this connection

may be made to the following orders of the Supreme Court, in which Section

37 was otherwise applicable:

Sr.

No.

Case No. Cause title Date of order

/ judgment

Period of

incarceration

1. SLP (Crl.) No.

8900/2022

Jitendra Jain v.

Narcotics

Control Bureau and

Anr.

16.12.2022 2 years

2. SLP (Crl.) No.

6690/2022

Dheeraj Kumar

Shukla v. State of

U.P.

25.01.2023 2 and a half

years

3. SLP (Crl.) No.

4169/2023

Rabi Prakash v.

State of Odisha

13.07.2023 More than 3

and a half

years

4. SLP (Crl.) No.

975/2023

Badsha SK. v. The

State of West

Bengal

13.09.2023 More than 2

years

5. SLP (Crl.) No.

8656/2023

Man Mandal and

Anr. v. The State of

West Bengal

14.09.2023 Almost 2

years

6. SLP (Crl.) No.

14347/2023

Rased Mia v. The

State of West

Bengal

24.01.2024 1 year and 6

months

7. SLP (Crl.) No.

14415/2023

Suman Sk. @

Samirul Islam v.

The State of West

Bengal

01.03.2024 Not

mentioned

8. SLP (Crl.) No.

14974/2025

Deepchand v. State

of Rajasthan

26.11.2025 More than 3

years

17. In many of the aforesaid decisions, the Court referred to the valuable

right granted by Article 21 of the Constitution, which would stand defeated

BAIL APPLN. 873/2024 Page 14 of 22

by prolonged incarceration during the period of trial. Upon a consideration

of the fundamental right to life and liberty, bail was granted, despite the

applicability of Section 37 of the NDPS Act. In some of the judgments, the

Supreme Court has specifically considered whether the parameters of

Section 37 of the NDPS Act must also be satisfied in such a case.

18. The judgment in Md. Muslim deals with the issue in some detail.

Referring to its judgments in Union of India v. K.A. Najeeb

9

, and Supreme

Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of

India and Ors.

10

[which deals specifically with the NDPS Act], the Supreme

Court emphasised that restrictive provisions for bail, such as Section 37 of

the NDPS Act, must be interpreted in the context of the inordinate delay in

the conduct of the trial. The relevant observations of the Court are as

follows:

“12. This Court has to, therefore, consider the appellant’s claim for bail,

within the framework of the NDPS Act, especially Section 37. In Supreme

Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union

of India [(1994) 6 SCC 731] , this Court made certain crucial

observations, which have a bearing on the present case while dealing with

denial of bail to those accused of offences under the NDPS Act: (SCC pp.

747-48, para 15)

“15. … On account of the strict language of the said provision very

few persons accused of certain offences under the Act could secure

bail. Now to refuse bail on the one hand and to delay trial of cases

on the other is clearly unfair and unreasonable and contrary to the

spirit of Section 36(1) of the Act, Section 309 of the Code and

Articles 14, 19 and 21 of the Constitution. We are conscious of the

statutory provision finding place in Section 37 of the Act prescribing

the conditions which have to be satisfied before a person accused of

an offence under the Act can be released. Indeed we have adverted to

this section in the earlier part of the judgment. We have also kept in

9

(2021) 3 SCC 713.

10

(1994) 6 SCC 731.

BAIL APPLN. 873/2024 Page 15 of 22

mind the interpretation placed on a similar provision in Section 20 of

the TADA Act by the Constitution Bench in Kartar Singh v. State of

Punjab [(1994) 3 SCC 569] . Despite this provision, we have directed

as above mainly at the call of Article 21 as the right to speedy trial

may even require in some cases quashing of a criminal proceeding

altogether, as held by a Constitution Bench of this Court in Abdul

Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225], release on bail,

which can be taken to be embedded in the right of speedy trial, may,

in some cases be the demand of Article 21. As we have not felt

inclined to accept the extreme submission of quashing the proceedings

and setting free the accused whose trials have been delayed beyond

reasonable time for reasons already alluded to, we have felt that

deprivation of the personal liberty without ensuring speedy trial

would also not be in consonance with the right guaranteed by

Article 21. Of course, some amount of deprivation of personal liberty

cannot be avoided in such cases; but if the period of deprivation

pending trial becomes unduly long, the fairness assured by Article 21

would receive a jolt. It is because of this that we have felt that after

the accused persons have suffered imprisonment which is half of the

maximum punishment provided for the offence, any further

deprivation of personal liberty would be violative of the fundamental

right visualised by Article 21, which has to be telescoped with the

right guaranteed by Article 14 which also promises justness, fairness

and reasonableness in procedural matters.”

13. When provisions of law curtail the right of an accused to secure bail,

and correspondingly fetter judicial discretion (like Section 37 of the NDPS

Act, in the present case), this Court has upheld them for conflating two

competing values i.e. the right of the accused to enjoy freedom, based on

the presumption of innocence, and societal interest — as observed

in Vaman Narain Ghiya v. State of Rajasthan [(2009) 2 SCC 281] (“the

concept of bail emerges from the conflict between the police power to

restrict liberty of a man who is alleged to have committed a crime, and

presumption of innocence in favour of the alleged criminal….”). They are,

at the same time, upheld on the condition that the trial is concluded

expeditiously. The Constitution Bench in Kartar Singh v. State of

Punjab [(1994) 3 SCC 569] made observations to this effect. In Shaheen

Welfare Assn. v. Union of India [(1996) 2 SCC 616] again, this Court

expressed the same sentiment, namely, that when stringent provisions are

enacted, curtailing the provisions of bail, and restricting judicial

discretion, it is on the basis that investigation and trials would be

concluded swiftly. The Court said that parliamentary intervention is based

on:

BAIL APPLN. 873/2024 Page 16 of 22

“17. … a conscious decision has been taken by the legislature to

sacrifice to some extent, the personal liberty of an undertrial accused

for the sake of protecting the community and the nation against

terrorist and disruptive activities or other activities harmful to society,

it is all the more necessary that investigation of such crimes is done

efficiently and an adequate number of Designated Courts are set up to

bring to book persons accused of such serious crimes. This is the only

way in which society can be protected against harmful activities. This

would also ensure that persons ultimately found innocent are not

unnecessarily kept in jail for long periods.”

14. In a recent decision, while considering bail under the Unlawful

Activities (Prevention) Act, 1967, this Court in Union of India v. K.A.

Najeeb [(2021) 3 SCC 713] observed that: (SCC pp. 720-21, para 12)

“12. Even in the case of special legislations like the Terrorist and

Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs

and Psychotropic Substances Act, 1985 (“the NDPS Act”) which too

have somewhat rigorous conditions for grant of bail, this Court

in Paramjit Singh v. State (NCT of Delhi) [(1999) 9 SCC

252], Babba v. State of Maharashtra [(2005) 11 SCC 569],

and Umarmia v. State of Gujarat [(2017) 2 SCC 731], enlarged the

accused on bail when they had been in jail for an extended period of

time with little possibility of early completion of trial. The

constitutionality of harsh conditions for bail in such special

enactments, has thus been primarily justified on the touchstone of

speedy trials to ensure the protection of innocent civilians.”

The Court concluded that statutory restrictions like Section 43-D(5)

UAPA, cannot fetter a constitutional court’s ability to grant bail on

ground of violation of fundamental rights.

15. Even in the judgment reported as Vijay Madanlal Choudhary v. Union

of India [(2023) 12 SCC 1] this Court while considering bail conditions

under the Prevention of Money Laundering Act, 2002, held that: (SCC p.

269, para 325)

“325. … If Parliament/Legislature provides for stringent provision of

no bail, unless the stringent conditions are fulfilled, it is the bounden

duty of the State to ensure that such trials get precedence and are

concluded within a reasonable time, at least before the accused

undergoes detention for a period extending up to one-half of the

maximum period of imprisonment specified for the offence concerned

by law.”

16. In the most recent decision, Satender Kumar Antil v. CBI [(2022) 10

SCC 51] prolonged incarceration and inordinate delay engaged the

attention of the Court, which considered the correct approach towards

bail, with respect to several enactments, including Section 37 of the NDPS

BAIL APPLN. 873/2024 Page 17 of 22

Act. The Court expressed the opinion that Section 436-A (which requires

inter alia the accused to be enlarged on bail if the trial is not concluded

within specified periods) of the Criminal Procedure Code, 1973 would

apply: (SCC p. 127, para 86)

“86. … We do not wish to deal with individual enactments as each

special Act has got an objective behind it, followed by the rigour

imposed. The general principle governing delay would apply to these

categories also. To make it clear, the provision contained in Section

436-A of the Code would apply to the Special Acts also in the absence

of any specific provision. For example, the rigour as provided under

Section 37 of the NDPS Act would not come in the way in such a case

as we are dealing with the liberty of a person. We do feel that more

the rigour, the quicker the adjudication ought to be. After all, in these

types of cases number of witnesses would be very less and there may

not be any justification for prolonging the trial. Perhaps there is a

need to comply with the directions of this Court to expedite the

process and also a stricter compliance of Section 309 of the Code.”

xxxx xxxx xxxx xxxx

23. Before parting, it would be important to reflect that laws which impose

stringent conditions for grant of bail, may be necessary in public interest;

yet, if trials are not concluded in time, the injustice wrecked on the

individual is immeasurable. Jails are overcrowded and their living

conditions, more often than not, appalling. According to the Union Home

Ministry's response to Parliament, the National Crime Records Bureau

had recorded that as on 31-12-2021, over 5,54,034 prisoners were lodged

in jails against total capacity of 4,25,069 prisoners in the country. Of

these 1,22,852 were convicts; the rest 4,27,165 were undertrials.

24. The danger of unjust imprisonment, is that inmates are at risk of

“prisonisation” a term described by the Kerala High Court in A Convict

Prisoner v. State [1993 SCC OnLine Ker 127] as “a radical

transformation” whereby the prisoner:

“13. … loses his identity. He is known by a number. He loses personal

possessions. He has no personal relationships. Psychological

problems result from loss of freedom, status, possessions, dignity and

autonomy of personal life. The inmate culture of prison turns out to be

dreadful. The prisoner becomes hostile by ordinary standards. Self-

perception changes.”

25. There is a further danger of the prisoner turning to crime, “as crime

not only turns admirable, but the more professional the crime, more

honour is paid to the criminal” [Working Papers - Group on Prisons &

Borstals - 1966 U.K.] (also see Donald Clemmer’s “The Prison

Community” published in 1940). Incarceration has further deleterious

effects—where the accused belongs to the weakest economic strata:

BAIL APPLN. 873/2024 Page 18 of 22

immediate loss of livelihood, and in several cases, scattering of families as

well as loss of family bonds and alienation from society. The courts

therefore, have to be sensitive to these aspects (because in the event of an

acquittal, the loss to the accused is irreparable), and ensure that trials—

especially in cases, where special laws enact stringent provisions, are

taken up and concluded speedily.”

11

19. A similar reference is found in Rabi Prakash v. State of Odisha

12

,

which reads as follows:

“4. As regard to the twin conditions contained in Section 37 of the NDPS

Act, learned counsel for the respondent - State has been duly heard. Thus,

the 1

st

condition stands complied with. So far as the 2

nd

condition re:

formation of opinion as to whether there are reasonable grounds to

believe that the petitioner is not guilty, the same may not be formed at

this stage when he has already spent more than three and a half years in

custody. The prolonged incarceration, generally militates against the

most precious fundamental right guaranteed under Article 21 of the

Constitution and in such a situation, the conditional liberty must

override the statutory embargo created under Section 37(1)(b)(ii) of the

NDPS Act.”

13

20. In Dheeraj Kumar Shukla v. State of Uttar Pradesh

14

also, the

Supreme Court was of the view that the conditions under Section 37 of the

NDPS Act “can be dispensed with”, in a case of prolonged incarceration,

even where commercial quantities of drugs are concerned.

21. The following judgments of this Court have also been cited by Mr.

Singh:

a. In Gopal Dangi v. State NCT of Delhi

15

, the Court analysed, the case

on merits, and also the right under Article 21 of the Constitution, and

11

Emphasis supplied.

12

2023 SCC OnLine SC 1109.

13

Emphasis supplied.

14

2023 SCC OnLine SC 918.

15

BAIL APPLN. 3350/2023 and connected matter, decided on 15.07.2024.

BAIL APPLN. 873/2024 Page 19 of 22

released the petitioners on bail. The petitioners had been in custody

for approximately 1 year 10 months.

b. In Dilbagh Singh v. State through SHO Special Cell

16

, the allegation

concerned a commercial quantity, and, relying upon precedents of the

Supreme Court and this Court, a Coordinate Bench of this Court

released the petitioner on bail, having regard to the inordinate delay in

completion of the trial.

22. As opposed to these judgments, Mr. Aggarwala has drawn my

attention to two judgments of Supreme Court and two of this Court, which

mandate an analysis in terms of Section 37 of the NDPS Act, even in cases

which would fall within the ambit of Article 21 grounds:

a. In Narcotics Control Bureau v. Mohit Aggarwal

17

, and a recent

judgment in Union of India v. Vigin K. Varghese

18

, the Supreme Court

has emphasised the requirement of Section 37 of the NDPS Act in

cases of commercial quantity of drugs, even when the High Court had

rendered a finding relatable to Article 21 of the Constitution.

b. In Okeke Gloria Adaobi v. DRI

19

, a Coordinate Bench of this Court

declined bail on a consideration on merits under Section 37 of the

NDPS Act, despite an argument that the petitioner had been

incarcerated for a period of approximately 1 year and 8 months, and

that the trial was likely to take a long time.

16

BAIL APPL. 3649/2024, decided on 23.10.2024.

17

(2022) 18 SCC 374.

18

SLP (CRL.) 7768/2025, decided on 13.11.2025.

19

2025 SCC OnLine Del 4011.

BAIL APPLN. 873/2024 Page 20 of 22

c. In Amit Bhatnagar v. Narcotics Control Bureau

20

, the period of

custody was approximately two years. This Court nonetheless applied

Section 37 of the NDPS Act and held that the rigour of the statute

cannot be diluted unless the delay has been caused for reasons

attributable to the State, and the period of custody is unconscionably

long to constitute miscarriage of justice. While denying bail, the Court

specifically observed that the petitioner therein may be entitled to

revisit this ground if the trial remains stagnant for an unduly extended

period.

23. In the present case, as I have come to the conclusion that the petitioner

satisfies the conditions under Section 37 of the NDPS Act, it is not necessary

to adjudicate whether this analysis is necessary in all cases, even where

prolonged incarceration is made out, rendering the continued custody of the

petitioner violative of Article 21 of the Constitution.

24. On an application of the principles mentioned above, I am of the view

that the petitioner herein is also entitled to be released on bail on grounds

relatable to Article 21 of the Constitution. He was arrested on 09.03.2022,

and has remained in custody for a period of almost four years. The

prosecution has cited 40 witnesses. While the order on charges against him

was made on 14.02.2023, in almost three years since then, only one witness

[PW-1] was examined inconclusively in 2023, and one other witness [PW-5]

was examined only in 2025. The order sheets of the Special Court from

24.04.2023 onwards have been placed on record before this Court. They

show that several adjournments were necessitated by the absence of

20

BAIL APPLN. 1804/2025, decided on 27.08.2025.

BAIL APPLN. 873/2024 Page 21 of 22

witnesses, non-production of the accused, and other reasons not attributable

to the petitioner. Additionally, co-accused Kulvinder @ Kinda has been

chargesheeted only recently by way of a supplementary charge sheet, which

will further affect the pace of the trial. The trial is therefore unlikely to

conclude within a reasonable period.

D. CONCLUSION

25. On a holistic consideration of the facts, the petitioner is therefore

entitled to bail, both in terms Section 37 of the NDPS Act, and Article 21 of

the Constitution.

26. It is, therefore, ordered that the petitioner shall be released on regular

bail in connection with FNO.DZU/34/ENQ-02/2022 dated 07.03.022 and

08.03.2022, for the offences punishable under Sections 21(c), 23, and 29 of

the NDPS Act, subject to furnishing a bail bond in the sum of Rs. 50,000/-,

with one surety of the like amount, to the satisfaction of the learned Trial

Court, and further subject to the following conditions:

a. The petitioner shall appear before the learned Trial Court as and when

directed.

b. If the petitioner has a passport, he shall surrender the same to the

learned Trial Court, and shall not leave the country without the prior

permission of the learned Trial Court.

c. The petitioner shall ordinarily reside at the address as per prison

records, and shall not change the address without informing the

concerned Investigating Officer/ Station House Officer.

d. The petitioner shall furnish to the concerned Investigating Officer/

Station House Officer, a mobile number on which he may be

BAIL APPLN. 873/2024 Page 22 of 22

contacted at any time and shall ensure that the number is kept active

and switched on at all times.

e. The petitioner shall not contact, nor visit, nor offer any inducement,

threat, or promise to any of the prosecution witnesses or other persons

acquainted with the facts of the case.

f. The petitioner shall not tamper with evidence nor otherwise indulge in

any act or omission that is unlawful or that would prejudice the

proceedings in the pending trial.

27. The application stands disposed of in the above terms.

28. Needless to state, the observations of this Court are only for the

purpose of deciding the present application, and shall not be construed as an

expression of opinion on the merits of the case.

29. Copy of this judgment be sent to the concerned Jail Superintendent for

information and necessary compliance.

PRATEEK JALAN, J

FEBRUARY 11, 2026

dy/KA/